Mahadevayya P Hiremath S/O ... vs Bapugouda S/O Shivabasappagouda
2023 Latest Caselaw 1283 Kant

                                             -1-
                                                    CRL.P No. 201426 of 2022




                     IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH

                       DATED THIS THE 14TH DAY OF FEBRUARY, 2023

                                          BEFORE
                          THE HON'BLE MR JUSTICE V SRISHANANDA
                          CRIMINAL PETITION NO. 201426 OF 2022
                   BETWEEN:

                   MAHADEVAYYA P HIREMATH
                   S/O PARAMAYYA HIREMATH
                   AGE- 52 YEARS,
                   OCC- MEDICAL PRACTITIONER,
                   R/O BESIDE SHINNUR HOSPITAL
                   OPP. AMBHAVANI TEMPLE,
                   VIDYA NAGAR, SHAHAPUR,
                   TALUK SHAHAPUR, DIST. YADGIRI.
                                                               ...PETITIONER
                   (BY SRI. PUNITH MARKAL, ADVOCATE)

                   AND:

                   BAPUGOUDA S/O SHIVABASAPPAGOUDA,
                   AGE- 48 YEARS, OCC- AGRICULTURE,
                   R/O. CHIKKAHONNAKUNI VILLAGE,
                   TALUK DEVADURGA, DIST. RAICHUR.
Digitally signed
by VARSHA N                                                   ...RESPONDENT
RASALKAR           (BY SRI.BASAVALING NASI, ADVOCATE)
Location: High
Court of                 THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING TO
Karnataka
                   QUASH THE IMPUGNED ORDER DATED 15.09.2022 PASSED BY
                   THE LEARNED JUDICIAL MAGISTRATE OF FIRST CLASS,
                   DEVADURGA IN C.C. NO.93/2019, FOR OFFENCES PUNISHABLE
                   138 OF NEGOTIABLE INSTRUMENTS ACT, R/W SEC. 420 OF
                   IPC, IN THE INTEREST OF JUSTICE AND EQUITY.

                        THIS PETITION COMING ON FOR ADMISSION THIS DAY
                   THE COURT MADE THE FOLLOWING:
                                  -2-
                                       CRL.P No. 201426 of 2022




                            ORDER

1. This petition is filed under Section 482 Cr.P.C.

2. Heard Sri Punith Markal, learned counsel for the

petitioner-accused and Sri Basavaling Nasi, learned counsel for

the respondent-complainant and perused the records.

3. The complainant-respondent herein has instituted a

criminal prosecution against the accused for the offence

punishable under Section 138 of the Negotiable Instruments

Act, 1881. The learned Magistrate after following necessary

procedure issued process.

4. The same was opposed to by the learned counsel

for the accused-petitioner by filing written objections. The

learned Magistrate after hearing the parties by order dated

15.9.2022 discarded the evidence of the accused, by way of

affidavit filed by the accused on 8.4.2022.

5. Being aggrieved by the same, the accused

petitioner is before the Trial Court seeking for setting aside and

quashing of the order passed by the learned Magistrate on

15.09.2022.

CRL.P No. 201426 of 2022

6. Reiterating the grounds urged in the petition Sri

Punith Markal, learned counsel for the accused-petitioner

submits that the approach of the learned Magistrate in

discarding the affidavit evidence filed by the petitioner is

incorrect and sought for allowing the petition.

7. Sri Basavaling Nasi, learned counsel for the

complainant, however, contended as the law existed then, the

learned Magistrate has rightly discarded the petition.

8. In reply Sri Punith Markal, places reliance on the

order passed by this court on 30.05.2022 in the case of

Somashekar Vs. Sharada, in Criminal Petition No.100677/2019.

9. This court perused the material on record

meticulously in the light of the rival contentions of the parties.

10. Admittedly, the petitioner/accused is facing criminal

prosecution in respect of the dishonoured cheque. If we put

forth his defence evidence, accused/petitioner has filed an

affidavit in lieu of his examination in chief and the same was

sought to be discarded by filing a memo by the learned counsel

for the complainant. Memo reads as under:

CRL.P No. 201426 of 2022

"MEMO

The counsel for complainant most humbly prays this Honble Court may kindly be pleased to DISCARD/EXPUNGE, the Examination in chief filed by the accused by way of Affidavit dated 01.04.2022, as DW-1, as per the observations made by the Honble Apex Court in SLP (Crl.) No.3915/2006, WITH SLP (Crl.) No(s). 4760/2006, 5689/2006, 1106/2007,6442/2007, 6443/2007 and 6703/2007, in the matter of M/S. MANDVI CO- OP BANK LTD.// VERSUS // NIMESH B. THAKORE, to adjudicate the above proceedings in a proper manner, in the interest of Justice.

The copy of Judgment is enclosed herewith for kind perusal of this Honble Court."

The memo was objected by filing written objections which reads

as under:

"Objections to the memo.

Your Honour,

The memo is false in facts bad in law as such not maintainable.

That it is relevant to note that amended negotiable instrument Act 1981 on 2018 with effect from 01.09.2018. In the said amended Act Sec.

145(2) is very much clear that "the court may if things feet and shall on the application of the

CRL.P No. 201426 of 2022

prosecution or the accused summon and examined any person giving evidence on affidavit as to the facts contained therein. Therefore after the amendment no oral evidence is taken to consideration. The citation given by the complainant is prior to amended N.I. Act. Therefore the said citation is not at all applicable to the case in hand.

It is worth here to submit that our own high court judgment reported Criminal Revision Petition 1307 of 2010 judgment dated 15.12.2020 it is very much clear that, the accused after amendment of N.I. Act the accused shall give his defense evidence by way of affidavit only relying the judgment of our apex court Srinath & another VS Rajesh and others and also Indian Bank Assn's case and Fazal Pasha case.

The accused already filed affidavit by way of chief examination and chief examination completed and document also marked now the case is posted for cross examination of accused. Now the complainant filed memo contending that, no affidavit can be filed by the accused for defense evidence. Therefore the complainant one or the other reason drag on the proceedings to cause delay to dispose off the case, therefore the memo is not maintainable liable to be dismissed."

CRL.P No. 201426 of 2022

11. Learned Trial Magistrate, however, accepted the

memo and discarded the evidence. Section 145(2) of the

Negotiable Instruments Act, permits the filing of affidavit

evidence in respect of the criminal prosecution for the offence

punishable under Section 138 of the Negotiable Instruments

Act.

12. As per the said provision, even the accused can

lead the defence evidence by filing an affidavit. When the

statute itself is clear that an accused can file an affidavit in lieu

of his examination in chief, the approach made by the learned

Magistrate in discarding the affidavit evidence is incorrect.

Therefore, the order dated 15.9.2022 passed in CC No.93/2019

needs to be quashed and the matter be remitted for fresh

disposal from the stage where it was stopped in accordance

with law.

13. Hence following order is passed:

ORDER

(i) The Criminal Petition is allowed.

(ii) Order dated 15.9.2022 in CC No.93/2019 on the file of the JMFC, Devadurga is hereby quashed.

CRL.P No. 201426 of 2022

(iii) The affidavit evidence led by the accused is to be taken on record and the learned counsel for the complainant is permitted to cross examine the accused and proceed with the case in accordance with law.

(iv) Since the case is of the year 2018, learned Magistrate shall expedite the trial and conclude the trial as early as possible.

Sd/-

JUDGE

PL*